E-COMMERCE SERVICES Agreement (“ESA”)
Date Last Modified: May 01, 2017
1. Description of Service. Optuno.com may make available for purchase, from time to time, a variety of e-commerce packages or solutions, stand-alone e-commerce services, optional plugin e-commerce services and e-commerce software, as published on the Optuno.com website (collectively, "E-commerce Services"). The E-commerce Services include, but are not limited to, shopping cart functionality, e-commerce templates, storefront or e-commerce website design, support and hosting, order and payment processing, inventory and product tracking and management, and website analytical tools. Optuno.com reserves the right to amend its E-commerce Services offerings and to add, delete, suspend or modify the terms and conditions of the E-commerce Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Software License and Proprietary Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer to use the E-commerce Services, including but not limited to any software, and related documentation solely for Customer to provide business related services over the internet that are consistent with the terms and conditions of this Agreement as well as any applicable state, federal, or international law.
Customer agrees that Customer and its agents will not:
- sell, lease, transfer, license or sublicense the E-commerce Services;
- modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the E-commerce Services in any way for any reason;
- provide, disclose, divulge or make available to, or permit use of the E-commerce Services by any third party;
- copy or reproduce all or any part of the E-commerce Services (except as expressly provided for herein);
- interfere, or attempt to interfere, with the E-commerce Services in any way;
- engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the E-commerce Services;
- knowingly introduce into or transmit through the E-commerce Services or any other services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design;
- remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the E-commerce Services;
- engage in or allow any action involving the E-commerce Services that is inconsistent with the terms and conditions of this Agreement; or
- cause, assist or permit any third party to do any of the foregoing. No right, title or interest of intellectual property or other proprietary rights in and to the E-commerce Services and/or other products, services or software made available under this Agreement is transferred to Customer hereunder. Optuno.com, its wholly-owned subsidiaries and affiliates and its Third Party Licensors (as defined below) retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the E-commerce Services and/or other products, services or software provided under this Agreement.
3. Audit Rights. If a customer has purchased any Optuno.com software or has obtained FTP access to the Optuno.com software or other E-commerce Services, Optuno.com shall have the right, during the term of this Agreement and for a period of six (6) months thereafter to access your location and files to inspect your or your agent's use of the E-commerce Services, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the E-commerce Services or this Agreement, Optuno.com shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate E-commerce Services if you are still an Optuno.com customer.
4. Availability, Downtime and General Services. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Optuno.com makes no guarantees that any given user will be able to access the E-commerce Services at any given time. Optuno.com shall not be liable to Customer for failure of accessibility to the E-commerce Services or any potential or actual losses that Customer may suffer from your inability to access or use the E-commerce Services or your customer's inability to access any websites that may be supported or hosted by E-commerce Services. Optuno.com provides all E-commerce Services and any software related to those services to you on an "as is" basis and does not guarantee that the E-commerce Services or any related software has no errors, defects or bugs or will function properly. Customer agrees that Optuno.com is not responsible in any way for any malfunction or downtime in the E-commerce Services or related software and any damage, injury or lost profits that may arise from such malfunction or downtime. Optuno.com makes no guarantee that the E-commerce Services that you purchase will operate seamlessly and without error with your own hardware, software or other services (including third party products) that Customer currently uses. Optuno.com makes no guarantees regarding system uptime, including but not limited to, the uptime for hosting your store(s) on Optuno.com or third party systems. From time to time, and as may be necessary to maintain such systems and Optuno.com hardware, Optuno.com reserves the right to take its servers and other hardware offline for repairs, upgrades or routine maintenance. Customer agrees and understands that Optuno.com E-commerce Services, including the hosting of your store, may be dependent on third party services that Optuno.com cannot control. Customer expressly agrees that the availability of those third party services may impact your E-commerce Services and therefore does not hold Optuno.com liable for any actions of a third party that may adversely impact your E-commerce Services. Any uptime calculation or percentage that is provided as a part of the E-commerce Services does not include routine maintenance, unexpected downtime caused by network issues or third party vendors, and occurrences that are outside the control of Optuno.com, including but not limited to the Force Majeure occurrences outlined in this Agreement. If you purchase E-commerce Design Services, you agree that you take full responsibility for all content suggested or supplied to Optuno.com for inclusion on web document(s), advertisement(s) or any form of media. Customer is held legally liable for any such supplied content.
5. Fees and Payment Terms. All fees associated with the E-commerce Services of your website are included within your Custom Website Services plan and as such all payment requirements and restrictions of the plan you purchased apply unless otherwise stipulated and agreed to in writing by Optuno.com. Acceptance of the Custom Website Services Agreement (“CWSA”) is mandatory for any Optuno.com services, including E-commerce. See Custom Website Services Agreement (“CWSA”) for Fees and Payment Terms.
6. Optuno Footer. Customer hereby agrees that the text footer link “Site by Optuno®” will appear on the completed site. Customer may choose to exclude or permanently remove the footer from its website, subject to an additional one-time payment to Optuno in the amount of $1,000.00 USD.
7. Restrictions on Use. You agree that you will not exceed the bandwidth, storage space, or sales limits applicable to the E-commerce Services purchased, as set forth on our Website. You agree that if you do exceed any such limits or otherwise engage in any such activity, Optuno.com, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, billing plan adjustment and/or upgrade (if sales limits have been reached Optuno.com will upgrade your account to the next available pricing tier), assessment of additional fees and/or suspension, and/or termination of your E-commerce Services. You agree that if your bandwidth and storage space usage adversely affects other customers on our shared E-commerce Services platform, Optuno.com may adjust your billing plan and/or suspend or terminate your E-commerce Services without liability. You agree that Optuno.com will have no liability to you or any of your end users due to any corrective action that Optuno.com may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.
8. Bandwidth Fees. Bandwidth overages will be incurred for each 10 Gigabyte (GB) of usage over your allotted plan amount at the rate of $2.00 per each block of 10GB. The fees are subject to change at Optuno.com’s sole discretion: Excess bandwidth usage cannot be purchased by you in advance. If you exceed your data transfer limit in the last 24 hours of any given month, Optuno.com will not charge you additional fees so long as the data transfer overage does not exceed 9GB. For E-commerce Services, you agree that Optuno.com may automatically charge your credit card for the bandwidth overage fees. You may opt-out of automatic charges to your credit card by contacting Customer Service. If you opt out of the automatic overage charges, you risk account suspension if you exceed your allotted amount.
9. Terms and Conditions of Optuno.com's Licensors. Customer acknowledges and agrees that the E-commerce Services are provided, in some cases, by third party Licensors to Optuno.com (hereinafter "Third Party Licensors"). For all E-commerce Services that are provided by Third Party Licensors to Optuno.com, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the "Additional Terms and Conditions"). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its E-commerce Services package.
10. Changes to Optuno.com Licensors. Customer acknowledges that Optuno.com may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the E-commerce Services. In the event that Optuno.com changes Third Party Licensors, Optuno.com may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on Optuno.com's website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
11. Termination. Upon termination of the Services, should Customer desire to obtain ownership rights to the Website, Customer must obtain express written permission from Optuno.com and Customer shall further remit a fee to Optuno.com for the assignment of these rights to the Website. Provided Customer is not in default of the Agreement and Customer is also current with respect to payments owed to Optuno.com, the fee to be remitted for this assignment will be as follows: One Thousand Five Hundred Dollars ($1,500.00) after one (1) year of successive hosting and maintenance; or Two Thousand Five Hundred Dollars ($2,500) prior to one (1) year of successive hosting and maintenance with Optuno.com. This assignment to Customer of ownership rights to the Website shall be limited to the actual portions of the Website visible on the Internet and its underlying HTML coding as developed specifically for Customer by Optuno.com, and shall be sent to Customer via email with a direct link to download a compressed archive file (.zip file) within thirty (30) days of remitting payment, but this assignment shall not include any rights to Optuno.com's software, trade secrets, methodologies, processes, proprietary functions, know-how, and all intellectual property including, but not limited to, all copyrights, trademarks, patents, and trade secrets related to Optuno.com's products or services, which shall remain the sole and exclusive property of Optuno.com and its respective suppliers, affiliates, partners, and/or licensors. For all images that are part of the Website and assigned to Customer hereunder, Customer is granted permission to only use those images in the manner in which it is provided to Customer by Optuno.com (i.e. embedded in the Website) and no other use of the images is permitted whatsoever. Moreover, upon assignment Optuno.com does not warrant the portability or functionality of the Website in any way to or on any platform, hosting or otherwise, that is not provided by Optuno.com. The files provided to you will be a static snapshot of your website that you can host on a third party server through a non-affiliated hosting provider. However, all of the features and functions of Optuno.com, such as your plugins, e-commerce tools and the ability to change content, will no longer be available after cancellation. You will need to have a web developer move your site to your new hosting provider’s server, maintain it and make any changes you wish. Following the termination of the Services, provided such termination occurs after the initial thirty (30) days following the launch of the Website (i.e. 30 days after the Website goes live), and provided Customer is not otherwise in breach of the Agreement, Customer will retain their rights to the Domain Name. If Customer cancels their Services within the first thirty (30) days following the launch of the Website, Customer acknowledges and agrees that Optuno.com and/or an entity designated by Optuno.com will retain rights to the Domain Name if purchased as part of the Website Design and Development services, unless Customer had provided the Domain Name themselves for use with the Services. Furthermore, in any instance where Customer retains rights to the Domain Name following termination of the Services, Customer will be responsible for all fees, costs and claims related thereto, whereby the registration of Domain Name, and any ancillary Domain Name related services (such a private registration) must be renewed prior to expiration at the then-current rates to prevent such services from expiring.
12. Refunds. Refunds for certain E-commerce Services are only provided in limited instances and only within the first 15 days from your purchase of the services. Such refunds are only permitted where the Customer has taken all actions consistent with this Agreement. Refunds will not include a processing fee that all Customers must pay.
13. E-commerce Store Builder. In conjunction with Optuno.com's E-commerce Services, Optuno.com may provide access to the FICMS™ software program ("Software") that enables you to operate an online store (the "Store") through which you can sell your products and services online. Optuno.com also provides other related services, including hosting of the Store, site design, email services, marketing services, domain name registration, and other such services, that along with the Software, may be offered to you (collectively, the "E-commerce Services").
- The Agreement is effective upon your use of the Software, whereby subject to all of the terms and conditions of this Agreement, Optuno.com will provide you with a limited license to use the Software. Subject to the terms and conditions of the Agreement, Optuno.com shall grant to you a non- exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Optuno.com ("Optuno.com Servers") through a Optuno.com website (the "Optuno.com Site") solely for the purpose of building, maintaining, and hosting the Store on which you offer products or services. The Store shall be hosted on an Optuno.com Server on which several merchants may share the resources and network capacity of that Optuno.com Server. You authorize Optuno.com to process any and all of your account transactions initiated through the use of the password and/or passphrase that you establish through registration on the Optuno.com Site and activation of your E-commerce Services account and you are solely responsible for maintaining the confidentiality of such password and/or passphrase.
- Upon activation of your E-commerce Services account and subject to the payment of applicable fees, Optuno.com will also provide certain hosting, support and other E-commerce Services to you during the term of this Agreement. Subject to payment of applicable fees, Optuno.com will provide design and customization Services for your Store as provided herein and in accordance with this Agreement and Optuno.com's then current customization terms and policies. You shall provide all Content for the Store, such as text, music, sound, photographs, video, graphics, logo data, software, design, and related information in a format and within a time period designated by Optuno.com.
- For the E-commerce Services and Software license, Optuno.com will invoice you and you agree to pay (i) all non-refundable recurring subscription and other annual or one-time fees, in advance, for the license of Software and E-commerce Services to be rendered to you by or on behalf of Optuno.com during the upcoming billing period, and (ii) all applicable transaction fees and all other fees designated to be paid in arrears based on the value of goods and services sold through your Store during the previous billing period in the following month according to the terms and conditions of the plan you subscribed to, and further in accordance with the invoicing and payment requirements. Optuno.com will debit all fees payable by you to Optuno.com directly from the credit card, debit card or PayPal account designated by you when you register for your E-commerce Services account in order to receive a license to the Software.
OPTUNO RESERVES THE RIGHT TO AMEND ANY PORTION OF THE INCORPORATED AGREEMENTS WITH OR WITHOUT NOTICE. IT IS THE CUSTOMER'S RESPONSIBILITY TO REVIEW ALL OPTUNO POLICIES FREQUENTLY TO ENSURE COMPLIANCE.